Citation Nr: 1419906
Decision Date: 05/05/14 Archive Date: 05/16/14
DOCKET NO. 11-13 056 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines
THE ISSUE
Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund (FVECF).
ATTORNEY FOR THE BOARD
L. Barstow, Counsel
INTRODUCTION
The Veteran had active military service from January 1941 to September 1945. The Veteran died in November 1991; the appellant is his surviving son.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.
The appellant requested and was scheduled for a videoconference hearing before a Veterans Law Judge, but did not appear for the hearing. Accordingly, the Board considers the appellant's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d), (e) (2013).
FINDINGS OF FACT
1. The Veteran died in 1991 and the FVECF was not created until 2009.
2. The appellant does not meet the definition of an "eligible person" to receive a one-time payment from the FVECF.
CONCLUSION OF LAW
The requirements for eligibility to a one-time payment from the FVECF have not met. 38 U.S.C.A. § 107 Note (West 2002 & West Supp. 2012); American Recovery and Reinvestment Act, § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. VA's Duties to Notify and Assist
Governing law and regulations provide that VA is not required to provide assistance to a claimant if no reasonable possibility exists that such assistance would aid in substantiating the claim (i.e., there can be no entitlement to the benefit as a matter of law). 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). The United States Court of Appeals for Veterans Claims (Court) has further held that VA's duties to notify and assist do not apply where the law, and not the evidence, is dispositive of the claim. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As will be discussed below, the law is dispositive of the issue of on appeal, and VA's duties to notify and assist do not apply.
II. Analysis
The Philippine Islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War. During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were called into the service of the United States Armed Forces of the Far East by President Franklin D. Roosevelt. See Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941). Current law, however, provides that the service of certain Filipino veterans does not entitle them to receive full benefits administered by the Secretary U.S. Department of Veterans Affairs. 38 U.S.C.A. § 107 (West 2002). To redress the inequity, on February 17, 2009, the President signed legislation for the creation of the FVECF, providing one time payments to "eligible persons" in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens. Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009).
An "eligible person" is defined as any person who served before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including among such military forces organized guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States; or who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538).
The law provides for situations where the potentially eligible person files a claim but dies. If an eligible person who has filed a claim for benefits under this section dies before payment is made under this section, the payment under this section shall be made instead to the surviving spouse, if any, of the eligible person. The American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009), Section 1002 (c)(2).
The Veteran died in November 1991. The appellant, his surviving son, filed the current claim in 2010.
Based on a review of the evidence, the Board concludes that the appellant is not entitled to a one-time payment from the FVECF. Here, the Veteran died in 1991, well before the creation of the fund in 2009. Therefore, it is impossible that the Veteran had a pending claim at the time of his death. As the appellant does not meet the definition of an "eligible person," and as the potentially eligible person, the Veteran, did not have a claim pending at the time of his death, there is no provision in the law allowing the appellant to receive the one-time payment from the FVECF. As such, the appeal must be denied. Where, as here, the law is dispositive, the claim must be denied due to an absence of legal entitlement. Sabonis, 6 Vet. App. 426.
ORDER
Entitlement to a one-time payment from the FVECF is denied.
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ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs